| Fiji Islands - Bijay v Permanent Secretary of Education, Women & Culture - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 5 OF 1997
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IN THE MATTER of an Application by DIVENDRA BIJAY
(f/n Ram Charan) of Ralalevu, Nausori
for leave to apply for Judicial Review under Order 53 of the High Court Rules.
AND IN THE MATTER of the Decision of
the PUBLIC SERVICE COMMISSION
made on the 5th day of February 1997
AND IN THE MATTER of the Public Service Act, Cap. 74
and the Public Service Commission (Constitution) Regulations 1990
AND IN THE MATTER of alleged breaches of the principles of natural justice.
BETWEEN:
DIVENDRA BIJAY
s/o Ram Charan
Applicant
AND:
PERMANENT SECRETARY FOR EDUCATION,
WOMEN & CULTURE
1st Respondent
AND:
ATTORNEY-GENERAL OF FIJI
2nd Respondent
Mr. A.K. Singh for Applicant
Mr. S. Kumar with Mnuve for Respondents
JUDGMENT
This is an application for Judicial Review by DIVENDRA BIJAY (the "Applicant") under Order 53 Rule 3 of the High Court Rules 1988 of the decision of the Public Service Commission (the "Commission") on 6 February 1997 interdicting the Applicant without salary pending charges against him.
Background
The facts and circumstances surrounding this case are set out in the Applicant's affidavit filed in Support of the Application for
Judicial Review. However, I state below the brief facts as stated in my earlier Decision of 15 April 1997 when I dealt with Application
for Leave herein.
The Applicant was in February 1997 formally charged pursuant to Regulation 41(1) of the Public Service (Constitution) Regulations,
1990 (the "Regulations") for committing a major offence under Regulation 36. The charge reads as follows (annexure I of Applicant's affidavit):
THAT you, Mr Divendra Bijay (TPF 55269), whilst employed by the Ministry of Education, Women and Culture, as a Teacher (TE08) at Korociriciri
Indian School, did commit a disciplinary offence within the meaning of Regulation 36(t) of the Public Service Commission (Constitution)
Regulations, 1990 in that you entered into a romantic and sexual relationship with one Miss Rolini Lata Prasad (f/n Gaya Prasad),
formerly a student of your school and presently a student at Suva Sangam High School, commencing with a romantic liaison with her
when she was a Form 3 student at Vunimono High School and leading to you having sexual intercourse with her when she came to stay
with you and your mother last year, your conduct being improper which is likely to being disrepute to the Public Service.
In accordance with Regulation 41(2) of the Public Service Commission (Constitution) Regulations, 1990 you are required to state in
writing within fourteen days from the date of receipt of this memorandum whether you admit or deny the charge. You may also provide
in writing such explanation as you think will enable proper consideration to be given to the charge laid against you.
The applicant is a school teacher. He graduated from Lautoka Teachers College on 28 November 1991 and was posted to Korociriciri Indian
School, Nausori on 20 January 1992. At that time he was teaching Class 5 and the said Rolini Lata (referred to as "Rolini") was a student in class 6. Subsequently during his teaching career they fell in love with each other. After a lot of struggle and
opposition from Rolini's parents consent for them to get married had been given by the time this application came on for hearing.
The said Charge was served on the applicant on 5 February 1997. The next day he was informed in writing of his interdiction in the
following terms:
Pursuant to the disciplinary charge laid against you by the Permanent Secretary for Education, Women & Culture vide his memorandum
CPF 55269K of 05/02/97 Public Service Commissioner Hector R Hatch has acting in accordance with the powers delegated to him by the
Public Service Commission decided that you should be and you are hereby interdicted from the service forthwith without salary in
accordance with Regulation 42 of the Public Service Commission (Constitution) Regulations, 1990.
During the period of your interdiction you shall not have access to any official premises and shall not remove, destroy or add to,
or cause to be removed, destroyed or added to, any official document, instrument or matter.
Whilst under interdiction you shall not leave Fiji without the permission of the Public Service Commission.
The interdiction will remain in force throughout the time it takes to conclude the determination of the charge laid against you.
On 7 February, Mr. A. Singh for the applicant sent a facsimile message stating, inter alia, that an application for Judicial Review
is being prepared and that the said Charge is defective. He also complained that the applicant has not been paid his wages which
was already due.
On 6 March 1997 in reply to the applicant's counsel's request to reconsider the decision to interdict "without salary" the first Respondent replied that it "has not been acceded to by Commissioner Hector R Hatch" on the ground that it would be inappropriate for him to do so as the matter is presently before the High Court.
The applicant was charged by Police for the offence of defilement, but because of insufficient evidence, on the direction of Director
of Public Prosecutions, the charge was withdrawn and the learned Magistrate acquitted the applicant under s201 of the Criminal Procedure Code.
After his acquittal on 25 March 1997 Rolini was given consent to marry and at the time of the hearing Mr. Singh said that they are
about to get married.
Relief sought
The relief sought are as set out in the Application for Judicial Review. These include (a) an order of Certiorari to remove the said
decision to interdict into this Court, (b) to quash the said decision interdicting the applicant without any salary and (c) an order
reinstating the applicant.
Applicant's submissions
Briefly, the grounds upon which the reliefs are sought are set out in the Statement of Application for Leave filed 27 February 1997.
They are as follows:
(a) that the Permanent Secretary for Education, Women and Culture did not consider the facts that "the Applicant has a right to be heard before being interdicted".
(b) that irrelevant considerations were taken into account.
(c) that the said decision was illegal, unlawful and in excess of jurisdiction.
(d) that the same decision is ultra vires, invalid, null and void.
(e) that there was breach of natural justice.
(f) that the said decision is arbitrary, capricious, unfair, unreasonable and irrational.
(g) that no reasons were given for the decision.
(h) that the Permanent Secretary should have referred the charges to a Disciplinary Tribunal under the Public Service Commission (Constitution)
Regulations 1992.
(i) that the Permanent Secretary had predetermined the matter pertaining to the disciplinary charge.
Respondents' submissions
The Respondents oppose the application on the grounds that (a) the application is premature; there is no formal decision which may
be susceptible for judicial review, (b) there are other avenues for the applicant to address the grievance and (c) the applicant
has failed to show in his affidavit the reasons for illegality, unreasonableness or procedural impropriety.
After oral hearing of the application for Judicial Review I made an Order that written submissions be filed. This was done and I have
given due consideration to them.
Consideration of the issue
Legal principles
It is from the decision of the Respondents to interdict without salary that the applicant brings this Application for Judicial Review.
Judicial review is a process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of
inferior Courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance
of public acts and duties (Halsbury 4th Ed. Vol 37 para 2).
The first respondent is a body whose decisions are susceptible to judicial review.
In a judicial review the Court's function is to review not the merits of the decision in respect of which the application is made,
but the decision-making process itself. In CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS, [1982] UKHL 10; (1982) 1 WLR 1155 at 1174 LORD BRIGHTMAN said: "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was
made". Before I consider the case before me it is also pertinent to bear in mind by all those who have cast upon them the duty to make
decisions the following words of LORD HAILSHAM in EVANS (supra) at 1160 on the purpose of the remedy by way of judicial review under order 53:
"This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access
than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the
abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first
practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly
vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner." (underlining mine for emphasis)
I shall now consider the Regulations which empower the First Respondent to deal with the Applicant.
In this case, it is under the Public Service Commission (Constitution) Regulations 1990 (the "Regulations") that the first Respondent made the decision to interdict the Applicant.
Section 127 of the Constitution of the Sovereign Republic of Fiji 1990 states that the "power to make appointments to Public Offices (including power to confirm appointments) and to remove and to exercise disciplinary
control over persons holding or acting in such offices shall vest in the Public Service Commission". The Regulations regularise the functions of the Commission.
The disciplinary regulations are contained in Regulations 36 to 53. The Applicant was charged under Reg. 36(t) which provides that:
"36. An officer commits a disciplinary offence for the purposes of disciplinary proceedings who:
(a).....
(c) is guilty of improper conduct in his Official capacity, or of any other improper conduct which is likely to affect adversely the
performance of his duties or is likely to bring the Public Service into disrepute or be prejudicial to the conduct of the Public
Service; ....."
It was under Reg. 42 which provides as follows that the Applicant was interdicted:
"42 - (1)Where there have been instituted against the officer:
(a) disciplinary proceedings in respect of a major offence; or
(b).....
and where the Commission is of the opinion that the public interest requires that that Officer should forthwith cease to perform the
functions of his Office, the Commission shall interdict him from such performance."
The sole issue for my determination is whether there are any merits in the grounds of relief sought.
Findings
Natural justice and judicial review powers
There is no doubt that the Respondents acted under the Regulations referred to hereabove. Although the Applicant was allowed 14 days
within which to reply to the charge, he was despite that interdicted without salary the very next day after being charged.
The question therefore is whether there was anything wrong in the procedure adopted by the Respondents in interdicting him in this
manner. In other words whether there was, inter alia, breach of natural justice. There is no doubt that rules of natural justice
regulate the exercise of the power vested in the first respondent.
The following passages from the various judgments, at the expense of being lengthy, explain fully the principles pertaining to the
concept of 'natural justice' and its applicability to Acts of Parliament and regulations made thereunder.
In this regard in ANNETS v McCANN (1900) 170 CLR 596 at 598, MASON C.J. DEANE and McHUGH JJ said:
"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's
rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded
by plain words of necessary intendment: Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396; "Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-110; Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 496, 500; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 456; Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 680. In Tanos (1958) 98 CLR at 396, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules
of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'.
Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules
of natural justice: Baba v Parole Board (NSW) (1986) 5 NSWLR 338 at 344-345, 347, 349. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584, Mason J said that the law in relation to administrative decisions 'has now developed to a point where it may be accepted
that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions
which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention'."
In a case of this nature where specific power has been vested in the first respondent, it is most important to have a proper understanding
of the extent to which principles relating to judicial review are applicable.
In approaching this case, apart from the principles stated above, the following comprehensive passage from the judgment of BRENNAN J at 604-605 in ANNETS (supra) on the function of judicial review has been borne in mind by me:
"Judicial review is not designed to control the way in which coroners and other public officers perform their functions: it is
simply an application of the law governing the extent and exercise of a power. The focus of judicial review is a power created by
statute conferred on an authority prescribed by statute. (It is unnecessary to consider whether the remedies of judicial review are
available in respect of an exercise of prerogative power.) The remedies prohibit the exercise of a power or compel the exercise of
a power or hold invalid a purported exercise of a power. To hold a purported exercise of a power invalid is to deny it the legal
effect which, if it were valid, it would have. An order prohibiting or compelling an exercise of power is made when the intended
exercise of the power or the failure to exercise the power is contrary to law; an order holding a purported exercise of a power to
be invalid is made when its purported exercise fails to satisfy a condition governing its validity. The law governing the extent
and exercise of a power exists independently of the circumstances which evoke its exercise or the circumstances in which the exercise
or purported exercise occurs. That must be so, not only as a legal truism but as a matter of practical necessity: a repository of
a power must know what the law requires for the valid exercise of the power before attempting its exercise."
BRENNAN J goes on to state that where the power is derived from:
"The relevant law must be found in the statutory provisions which create the power and confer it on the repository, though the
terms of the statue may be expanded by the implication of conditions supplied by the common law. Thus the common law will usually
imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the
exercise of power. This is the foundation and scope of the principles of natural justice. The common law confers no jurisdiction
to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute
which creates and confers the power. If it were otherwise, the common law would be asserting a jurisdiction to review an exercise
of a power contrary to a statutory provision that gives effect to an exercise of the power by the authority in whom it is reposed
when it is exercised in conformity with the statute. It follows that the statute, construed to include any terms supplied by the
common law, must define the conditions governing the exercise of a statutory power by a statutory authority.
When a writ of prohibition or an injunction is sought to restrain the exercise of power, the applicant must show that there is a failure
to satisfy some condition governing the proposed exercise of the power; for example, that the repository of the power has failed
to accord natural justice to a person whose interests are liable to be affected adversely by the proposed exercise. Whether an exercise
of a particular power is so conditioned is a question of law."
In the case of BIRSS v SECRETARY FOR JUSTICE [1984] NZCA 24; (1984) 1 NZLR 513 it is stated that in appropriate cases "rules of natural justice and fairness prima facie applied to suspension from office without salary" (underlining mine for emphasis). The principles governing the issue before me are to be found in BIRSS (supra) and the headnote to
that case is pertinent. It reads:
"The appellant was a senior probation officer employed by the Department of Justice. In May 1982 he was notified by the Secretary
for Justice of various charges which had been made against him under s58 of the State Services Act 1962. Nineteen months later without
any immediate prior notice the appellant received a notice from the Secretary for Justice directing that he was to be suspended from
duty with effect from the date of receipt of the notice. The suspension was with pay until the expiry of the appellant's period of
annual leave and then to be without pay. The appellant sought judicial review of the Secretary for Justice's decision. In the High
Court his application for review was dismissed and he appealed.
Held: The State Services Act contained no provisions which specified the procedure to be observed in reaching a decision to suspend.
In the absence of any clear expression of a contrary legislative intent, the rules of natural justice and fairness prima facie applied
to suspension from office without salary. What natural justice required in a particular case must be determined in the light of the
facts of that case. It did not necessarily follow that notice and an opportunity to be heard must be given in every case where suspension
was in contemplation. The nature of the charge and the exigencies of the moment might perhaps call for immediate action. But, in
this case, having worked for 19 months after the charges had first been made against him, the appellant was entitled to notice that
suspension was under consideration. He should also have been given an opportunity to submit arguments against the contemplated suspension.
The Secretary of Justice, as a senior officer entrusted with the power of suspension, must be prepared to consider and weigh carefully
arguments which the officer at risk might raise against the exercise of the power. The appeal was allowed and the suspension of the
appellant was declared invalid (see p 517 line 34, p 522 line 37, p 523 line 22)."
The learned counsel for the Applicant laid great stress in this case that there was a denial of natural justice. Here the Regulations
under which the Respondents acted are very clear and in that case they must be followed. On the principle of natural justice I would
like to also refer to the judgment of JEFFRIES J in BOURKE v STATE SERVICES COMMISSION (1975) 1 NZLR 633 at 644 in regard to duty of courts and others to adhere to Acts and regulations;
"The duty of all, including the courts, is to adhere strictly to the Acts of Parliament. In my opinion, although the law as contained
in the cases has moved very much in the direction of strengthening the principles of natural justice, if the statute is clear, which
I think it is in this case, there is no room for engrafting upon legislation a new and improved system. That is what Lord Morris
said in Furnell v Whangarei High Schools Board [1973] 2 NZLR 705; [1973] AC 660:
"In support of these claims the rules of natural justice were invoked. It becomes necessary therefore to consider whether the
detailed and elaborate code which prescribes the procedure to be followed when there is a suggestion of an offence under s 158 is
a code which gives scope for unfairness and whether in its operation the Court in the interests of fairness must supplement the written
provisions. In the present case do the well-known words of Byles J in Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CBNS 180, 194, apply, viz, "...although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common
law will supply the omission of the legislature"? Or is the code one that has been carefully and deliberately drafted so as
to prescribe procedure which is fair and appropriate? In whatever way the status of the appellant as a teacher is in law to be defined
he agreed to serve under the conditions laid down in the regulations and unless some provisions are to be read into them or are incorporated
in them it is clear that they were faithfully followed. It is not lightly to be affirmed that a regulation that has the force of
law is unfair when it has been made on the advice of the responsible Minister and on the joint recommendation of organisations representing
teachers employed and those employing. Nor is it the function of the Court to re-draft the code" (ibid, 717-718; 679).
He goes on to cite at 644-645 the following passage from the speech of LORD HAILSHAM of St. Marylebone in PEARLBERG v VARTY (1972) 1 WLR 534 where the House of Lords held the same view as above:
"Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important
legal principle at all. On the contrary, it is only another example of the general proposition that decisions of the courts on particular
statutes should be based in the first instance on a careful, even meticulous, construction of what the statute actually means in
the context in which it was passed. It is true of course, that the courts will lean heavily against any construction of a statute
which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view
of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than the statute accords him.
Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend
or supplement it with new provisions so as to make it conform to that judgment. The doctrine of natural justice has come in for increasing
consideration in recent years, and the courts generally, and your Lordships' House in particular, have, I think rightly, advanced
its frontiers considerably. But at the same time they have taken an increasingly sophisticated view of what if requires in individual
cases. As Tucker LJ observed in Russell v Duke of Norfolk [1949] 1 All ER 109, 118, in a passage repeatedly cited with approval in your Lordships' House:
"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal.
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which
the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from
the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that
the person concerned should have a reasonable opportunity of presenting his case".
Having considered the arguments advanced by Mr. Singh and in the light of the authorities referred to above I do not consider this
to be an "appropriate case" (BIRSS, supra) in which there was denial of natural justice or that the decision was arbitrary, capricious, unfair, unreasonable or
irrational as alleged. The Respondents acted intra vires as provided under Reg. 42 although no procedure is laid down under it to
be observed in reaching a decision to interdict. The interdiction was only until the determination of the 'charge' and this was communicated to the Applicant by the letter interdicting him.
There can be no doubt that the Applicant is entitled to challenge the quality of the decision in this case under Order 53. But each
case has to be looked at on its own facts. The locus classicus on this aspect of judicial review is the judgment of LORD GREENE M.R. in ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION [1947] EWCA Civ 1; (1948) 1 K.B. 223. That case involved the question of exercise of discretion and the Master of Rolls stated the criteria affecting decision thus:
"the Court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account
matters which it ought not to take into account, or conversely, has refused to take into account."
"...once that question is answered in favour of the local authority, it may still be possible to say that, although the local
authority have kept, within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion
so unreasonable that no reasonable authority could ever have come to it. In such a case, again I think the Court can interfere."
In this case I see no reason to interfere. The Applicant should have waited until the charge against him was determined. By his applying
for Judicial Review at the stage of interdiction without salary has stalled the proceedings before the Commission.
The Respondents acted intra vires by interdicting the Applicant without salary until as they said "the time it takes to conclude the determination of the charge laid against" him. There was nothing to prevent the Respondents from acting as they did in all the circumstances of this case.
The circumstances of this case somewhat resemble the facts of the case of Professor SYDNEY SPARKS ORR who held the chair of Philosophy in the University of Tasmania. Incidentally, I was his student in the subject of Philosophy and
Psychology. In that case ORR had an association with one SUZANNE KEMP, who at the material time, was a second-year student in his
philosophy class at the university. On 19 March 1956 ORR sued the University for a declaration that he is and has been at all times
the Professor of Philosophy in the University and, alternatively, for damages for his wrongful dismissal from that Office. He claimed
£10,000 damages for breach of contract. GREEN J in the Supreme Court of Tasmania dismissed the action. From that decision he appealed to the High Court of Australia.
In the judgment of High Court in ORR v THE UNIVERSITY OF TASMANIA [1957] HCA 32; (100 CLR 526 at 527) the following facts appear which have some relevance surrounding the case before me:
"It was alleged by the defendant university that the appellant had seduced Miss Kemp and that by reason of the circumstances
in which this occurred it became entitled to dismiss him summarily. This the university proceeded to do on 16th March 1956. A great
deal of evidence was given in the action concerned incidents which occurred during the year 1955 and it is clear that there was abundant
evidence upon which the learned trial judge was entitled to find that the substantial allegations made by the defendant university
had been proved. This finding was made despite the emphatic denials of the appellant that sexual intercourse had ever taken place
between him and Miss Kemp."
The judgment further states:
"But on the basis that the validity of the findings of the learned trial judge should be conceded counsel for the appellant contended
that the facts as found by the learned trial judge did not constitute legal justification for the appellant's dismissal. With this
submission we emphatically disagree. Miss Kemp was a student in the appellant's class, she was eighteen years of age and it is apparent
that she was then passing through a period of turbulent eroticism. Moreover there can be little doubt that she was eager to institute
an intimate personal relationship with the appellant, but there is not the slightest doubt, upon the facts as found, that the appellant,
having observed her feelings, became only too ready to take advantage of them and seduce her. The affair developed under the guise
of the discussion of philosophical problems and, within a short period resulted in sexual intercourse taking place between them.
Thereafter, it occurred on a number of occasions. We have not the slightest doubt that this conduct on his part unfitted him for
the position which he held and that the university was entitled summarily to dismiss him. We can only express our surprise that the
contrary should be maintained."
In this case before the Applicant was interdicted without salary, on the facts which were before the Respondents, it was entirely
within their discretion to reach that decision. In any case, any final decision will no doubt depend on the facts which the applicant
lays before the Respondents when the charge is heard unlike in ORR (supra) where the Court after hearing dismissed the action which
was upheld on appeal. The High Court said:
"We are satisfied that the defendant university was entitled to terminate the appellant's appointment for conduct which rendered
him unfit for his office of professor, that such conduct was properly proved before the learned trial judge and that there is not
the slightest reason why this Court should interfere."
To conclude on the evidence and argument before me I find that the Respondents followed the procedure in the Regulations and they
acted fairly and properly. I find that none of the grounds on which the various reliefs are sought have any merits. There was no
denial of 'natural justice' nor was there any need for the applicant to be heard at the time when the Respondents decided to interdict him without salary.
In the outcome, for the above reasons, I agree with the learned counsel for the Respondents that the Application is premature and
it is dismissed with costs against the Applicant to be taxed if not agreed.
D. Pathik
Judge
At Suva
12 September 1997
Hbj0005j.97s
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